User-Generated Improvements to the OPEN Act

The OPEN Act represents the first-ever Congressional bill markup truly open to the American public. Empowered by Madison, more than 150 users commented on – and suggested improvements to – the draft OPEN Act. Scroll down to see the user-generated improvements included in the official legislation now before Congress. Your good ideas have already made OPEN work better for American artists and the Internet community. Thank you.

Defining "Counterfeit"

Rationale: Ankur caught a drafting error that was made in the original version of the OPEN Act posted here. Ankur is correct that it is §34(d) of the Lanham Act that deals with counterfeit marks. We changed the formally introduced OPEN Act to reflect Ankur’s catch. Thank you, Ankur.

Rationale: William’s comments here showed the need to clarify the OPEN Act in this subsection. The new language - “(B) provided that, in the event of the filing of any civil action in the appropriate United States district court” – attempts to remove confusion around certain situations when the Commission could not initiate an investigation: if the overseas entity meets the criteria to be sued in federal court, then there is no need for the Commission to initiate an investigation. We believe William is correct here and that the formally introduced OPEN Act eliminates ambiguity regarding the requirements for this subsection and for the section as a whole. Thank you, William.

Website Owners Aren't Always Domain Name Registrants

Rationale: Steve’s comments helped us change the bill here to “Owner or Registrant of a Domain Name” in the formally introduced OPEN Act. The improvement acknowledges that a website owner may not necessarily be the registrant. Steve’s suggestion ensures that notice could be served to either. Thank you, Steve.

Preventing Frivolous and Costly Claims

Rationale:Carolyn, Rowena, John, Mike and the Electronic Frontier Foundation(site) captured numerous concerns over the creation of a fee structure to offset the costs of International Trade Commission (ITC) investigations. To make a content-holder’s claims process less of a hassle, we included Carolyn’s suggestion to remove the fee language; instead, the OPEN Act now includes the traditional bonding structure of the ITC. That means the posted bond would be returned to the claimant if the infringement claim against a foreign rogue website is found to be valid. If the claim isn’t found to be valid, then the posted bond would be used to help offset the other party’s costs. Thank you, all.

Protecting American Artists, Faster

Rationale: We included David’s suggestion to the OPEN Act, changing the language here to “shall expeditiously take reasonable measures” in order to clearly state that financial transaction providers must cut off funds to an infringing, foreign rogue website as quickly as possible. Thank you, David.

Increasing International Trade Commission(ITC) Flexibility

Rationale: Doug had a valid point that a “shall” requirement could potentially slow down the process through which the International Trade Commission (ITC) would both operate and cooperate. By changing the language in the formally introduced OPEN Act to a “may,” the bill now delivers a greater degree of flexibility to ITC operations. Thank you, Doug.